162 Iowa 246 | Iowa | 1913
Defendant admitted receiving some of the property, and admitted that, but for the counterclaim, he would be indebted to plaintiff in the sum of $48. He filed a counterclaim for $1,000 alleged to be the difference between what defendant agreed to pay for the goods not delivered under the contract or offer and the market value. Plaintiff denied that all the goods were sold under the written offer, and denied that the offer was accepted, but alleged that the
As the rooms were vacated, and the material torn out from time to time, and hauled away, the engineer in charge of the building would keep account of the material so taken, showing what was taken, and by whom. Afterwards the memorandum was turned into the department store. The items were not entered on the books of the concern, according to the testimony of the bookkeeper in charge of the books. The company failed, and a receiver was appointed.
At the trial the memorandum, showing material the engineer claims was turned over to defendant, could not be found. The manager had seen this lost list, and personally made a memorandum from it of some of the articles but not all, in a small book referred to in the record as Exhibit B. At the trial, four or five years after the transaction, the engineer was not able to testify as to the exact number of bowls, tubs, lavatories, etc., taken by the defendant.
"We think the matter was connected up in such a way, and the loss of the original memorandum accounted for, so that secondary evidence thereof was admissible as to that part of the memorandum made by the manager himself. That part only of Exhibit B shown to have been made by the
2. Instruction No. 8 is complained of. It is as follows:
The reasonable market value of personal property is established when other property of the same kind has been the subject to purchase and sale to such an extent that the value or price becomes fixed in that locality or market, and in this connection you are entitled to give the evidence offered and introduced in this ease as to the reasonable market value of the goods, wares, and merchandise in question at the time and place in question such weight to which you deem it entitled.
In our opinion, the instruction is not erroneous as applied to the facts in this case. No instruction was asked by defendant on this point.
We do not find in the record that he served notice on plaintiff, or its officers, to produce the originals. If he had done so, it may be they would have been produced. Two letters from Crowell to defendant were introduced in evidence at about the same' dates, and it would have been proper enough for the jury to have had all the letters between the parties on this matter. But the three letters alleged to have been newly discovered were not admissible to impeach the Crowell letters, because defendant himself offered in evidence the letters from Crowell. Defendant testified as a witness to substantially all the statements made by him in the letters, so that the letters would be cumulative.